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Huthnance v. District of Columbia

December 15, 2008

LINDSAY HUTHNANCE, PLAINTIFF,
v.
DISTRICT OF COLUMBIA ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case is before me for resolution of certain discovery motions. Currently pending and ready for resolution are plaintiff's Motion to Compel Discovery [#43] and Defendant District of Columbia's Motion for Protective Order ("Defs. Mot.") [#47]. For the reasons stated herein, plaintiff's motion will be granted in part and denied in part and defendant's motion will be granted.

INTRODUCTION

Plaintiff, Lindsay Huthnance, a resident of the District of Columbia, claims that on November 15th and 16th, 2005, she was illegally arrested and detained by Officer L. Acebal, Officer J. Antonio, and Officer J. Morales, all with the Metropolitan Police Department ("MPD"). Amended Complaint ("Amend. Compl.") at page 2. According to plaintiff, the arrest occurred outside a 7-11 convenience store located at 3146 Mount Pleasant Street, N.W. in Washington, D.C. at approximately 12:00 a.m. Amend. Compl. ¶¶ 9, 16. Plaintiff is suing the three MPD officers for 1) False Arrest, 2) Intentional Infliction of Emotional Distress, 3) Assault and Battery, 4) Negligence Per Se, 5) Violation of First Amendment Rights, 6) Violation of Fourth Amendment Rights, 7) Violation of Fifth Amendment Rights, and 8) Violation of Eighth Amendment Rights. Amend. Compl. ¶¶ 47-85. Plaintiff is suing the District of Columbia ("the District") for 1) False Arrest, 2) Violation of First Amendment Rights, 3) Violation of Fourth Amendment Rights, 4) Violation of Fifth Amendment Rights, and 5) Violation of Eighth Amendment Rights. Amend. Compl. ¶¶ 86-111.

Plaintiff's theory of the case is that MPD has a pattern and practice of abusing its power to arrest citizens for disorderly conduct and that MPD officers can ensure that their improper arrests escape any further scrutiny by offering the person arrested the option of posting collateral. If the person forfeits the posted collateral, the matter is then completed without further adjudication. This would be in contrast to the person being arrested and being taken before a judge or being give a citation with a date to appear before a judge. See Plaintiff's Opposition to the District's June 11 Motion for a Protective Order ("Plains. Opp.") at 11-13.

DISCUSSION

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense." Fed. R. Civ. P. 26(b)(1). Although it need not be admissible in itself, the information sought must be, at a minimum, "reasonably calculated to lead to the discovery of admissible evidence." Id. "'The scope of discovery is within the sound discretion of the trial court,' and a 'ruling by the trial court limiting or denying discovery will not be cause for reversal unless an abuse of discretion is shown.'" Sorrell v. District of Columbia, 252 F.R.D. 37, 38 (D.D.C. 2008) (quoting Chrysler Corp. v. Fedders, Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)).

Plaintiff's Motion to Compel Discovery

I. Plaintiff's Requests for Production

A. No. 2: All Documents referring or relating to the arrest and detention of Plaintiff (and any encounter that preceded it) on November 15th and 16th, 2005, including, without limitation, any police reports, witness statements, log entries, video recordings, post and forfeit paperwork, and all radio communications / transmissions relating to Plaintiff's arrest, detention, and transportation and identifying all MPD personnel on the scene of Plaintiff's arrest, detention and transportation (and any encounter that preceded it) and returning to service thereafter.

Memorandum in Support of Plaintiff's Motion to Compel Discovery ("Plains. Mem.") at 15.

According to plaintiff, the only remaining issue with regard to this request is the District's failure to produce the specified radio communications. Plaintiff's Reply in Support of Her Motion to Compel Discovery ("Plains. Reply") at 2. According to plaintiff, the District's own radio logs indicate that there was in fact at least one radio communication made and logged. Id. at 3. Plaintiff also argues that it is "the practice of MPD officers to conduct records checks by radio, and to call for transport by radio," and therefore the District's failure to produce such records raises issues of spoliation. Id.

Attached to plaintiff's reply at Exhibit B is a copy of the radio log for the night in question. Although the District claims that "there are no radio communications related to plaintiff's arrest," it provided plaintiff with the radio log and then conceded that the log does reference a communication related to plaintiff's arrest. Defendant District of Columbia's Opposition to Plaintiff's Motion to Compel ("Defs. Opp.") at 5. The question, therefore, as plaintiff rightly notes, is why the District is unable to produce the actual communication. To that end, plaintiff seeks the District's document retention policies. See Request for Production Number 18.*fn1

Materials that detail the District's document retention policies are relevant in that they may show whether the MPD radio communications were maintained according to standard procedure. See Doe v. District of Columbia, 230 F.R.D. 47, 56 (D.D.C. 2005) ("Rule 26(b)(1) may be construed to allow for discovery of document production policies and procedures in allowing '[p]arties [to] obtain discovery regarding any matter . . . including the existence, description, nature, custody, condition, and location of any . . . documents."). The District will therefore produce these documents.

B. No. 3: All Documents identifying MPD officers working in PSA 301 on November 15th and 16th, 2005 (3-11 shift 11/15; midnight shift 11/15-16; day shift 11/16), and any other MPD officers on special assignments, details, initiatives, or shifts that involved deployment within or around PSA 301 on those dates, including but not limited to any log books entries, rosters, roll call attendance sheets, time and attendance records for the Third District Station and Substations, and any dispatcher records.

Plains. Mem. at 16.

Plaintiff contends that she has received an incomplete set of documents. Specifically, plaintiff claims that while she received the computer-printed roll call sheets for the 0600-1430 shift for November 15, 2005 and the handwritten log-book pages for the 2200-0630 shift for November 16, 2005, she actually sought both types of records for the entire time period in question. Plaintiff's Reply in Support of Her Motion to Compel Discovery ("Plains. Reply") at 4.

Initially, the District did not object to this request but only stated that it had no responsive information but that it would produce what it had when it became available.

Plains. Mem. at 16. Its claim, made for the first time in its objection to plaintiff's motion to compel, that the request is overly broad, seems to have been waived. Peskoff v. Faber, 244 F.R.D. 54, 64 (D.D.C. 2007). In any event, the District has already provided plaintiff with a partial set of responsive documents. It would not be unduly burdensome for it to supplement its production by providing plaintiff with both the computer-printed roll call sheets and the handwritten log-book pages for the three duty shifts identified by plaintiff in this request for production. This seems to present the best hope of capturing the names of everyone on duty in the period of time when the plaintiff was in police custody and seems to be the fastest and simplest way to do it.

C. No. 4: For each of the Individual Defendants, all Documents constituting their personnel records including all Documents constituting, referring to, or relating to their performance evaluations, informal and formal complaints filed against them, and any disciplinary actions taken against them.

Plains. Mem. at 17.

The District argues that D.C. Code § 1-631.03*fn2 precludes its releasing the requested information and that furthermore, "the personnel files of the named defendants are not relevant to whether plaintiff was falsely arrested and/or whether she had a right to be offered the option of citation release as opposed to post-and-forfeit." Defs. Opp. at 7-8. Plaintiff argues that the District's attempt to use D.C. Code § 1-631.03 as a privilege against the discovery of these records is misplaced. Reply at 6-7. According to plaintiff, the District should instead have argued it was entitled to a protective order. Id. at 7.

The District has now moved for a protective order. Pursuant to the analysis provided below, the Court will grant both plaintiff's motion to compel and the District's motion for a protective order as to this request. I must first, however, define what I mean by "personnel records." While I have not seen the personnel records of these officers, as a result of my experience as an Assistant United States Attorney and as a judge, I know that they contain personal information, such as health and life insurance coverage, that has nothing whatsoever to do with the way an individual performs his work responsibilities. Because it is possible that these police officers' personnel records have similar information in them and because such information obviously has nothing to do with this lawsuit, the only portion of the officers' personnel records that must be disclosed are those dealing with the officers' hiring, training and performance of their duties, including, as the request indicates, "their performance evaluations, informal and formal complaints filed against them, and any disciplinary actions taken against them."*fn3

D. No. 5: A copy of the MPD General Orders. Plains. Mem. at 19.

The District objected to the production of all of MPD General Orders on the grounds that many of them are not relevant to plaintiff's claims. Defs. Opp. at 8. However, plaintiff certainly has a right to all of the MPD General Orders which in any way relate to her claims. See Austin v. District of Columbia, No. 05-CV-2219, 2007 WL 1404444, at *6 (D.D.C. May 11, 2007) (discussing the relevancy of MPD General Orders to plaintiff's ability to establish the applicable standard of care within the police force). The issue is whether it is simply easier for the District to turn over all of the General Orders and let plaintiff sift through them or whether the District will, on its own, identify and provide those General Orders relevant to plaintiff's claims.

Since it appears as though the District has to date only turned over those General Orders relating to its Citations Release Program, Defs. Opp. at 9, it is clear that its production is lacking. Rather than attempt to delineate for the District or have plaintiff delineate for the District those relevant areas as to which there likely are corresponding General Orders, the District will, as plaintiff originally requested, turn over all General Orders.

E. No. 6: All Documents constituting, referring to, or relating to any formal or informal MPD general orders, rules, regulations, policies, procedures, or practices in effect or under consideration at any time that concern post and forfeit or citation and release.

Plains. Mem. at 20.

Plaintiff argues that the District has yet to produce any of its policies or procedures relating to its post-and-forfeit procedure except for a 1984 Special Order regarding a Prosecution Report which is no longer used. Plains. Reply at 10. The District argues that the request is overly broad and that it fails to specify a relevant time frame.

The information plaintiff seeks is clearly relevant to her claim. However, plaintiff's request for all documents that were in either in effect or under consideration at any time is overly broad. Therefore, the District will produce only the requested documents concerning post and forfeit or citation and release that were in effect at the time of plaintiff's arrest.

F. No. 7: All Documents constituting, referring to, or relating to any formal or informal MPD general orders, rule, regulations, policies, procedures, or practices in effect or under consideration defining or otherwise giving meaning to the offense of disorderly conduct, including any guidance provided on the appropriate use of the designation "Disorderly Conduct - Loud & Boisterous" and under what circumstances such behavior warrants detention or arrest.

Plains Mem. at 21.

According to plaintiff, although the District initially provided her with no responsive documents, it has since provided two documents, the 2003 CCRB Report and an October 25 D.C. Criminal Code Handout. Plains. Reply at 11. Based on references within these two documents, plaintiff then surmises that there must be more responsive documents. Id. For example, plaintiff requests 2003 training materials based on a reference in the 2003 CCRB Report to a lecture script, a handout, special orders attached to the handout, and a video. Id.

Generally, the court is loathe to credit a party's mere hunch about the existence of additional documents responsive to a particular discovery request:

Courts supervising discovery are often confronted by the claim that the production made is so paltry that there must be more that has not been produced or that was destroyed. Speculation that there is more will not suffice; if the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end. Instead of chasing the theoretical possibility that additional documents exist, courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed.

Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) (citing Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 313 (S.D.N.Y. 2003)).

In this case, however, plaintiff's allegations are amply supported in that one of the documents the District produced references other documents and materials, which the plaintiff now seeks. See Plains. Reply at 11-12. The District will therefore produce those materials identified by plaintiff in her reply, as well as any other responsive documents. Id.

G. No. 8: All Documents constituting, referring to, or relating to any formal or informal MPD general orders, rules, regulations, policies, procedures, or practices in effect or under consideration concerning the training or supervision of MPD officers regarding the post and forfeit procedure; including any training materials, and any Documents identifying the times, dates, and content of any such training.

Plains. Mem. at 25.

According to plaintiff, the District has failed to respond at all to this request, which seeks information relating to the training of MPD officers with regard to the post and forfeit procedure. Plains. Reply at 13. In support of her contention that there exist additional materials that the District has failed to produce, plaintiff again points to the 2003 Report, which references a lecture script, handout with special orders, and a training video that were used by MPD for training purposes related to disorderly conduct. Id. Again, because plaintiff's claim that there must be additional responsive materials is supported by the District's very own document, the District will provide the above-referenced materials and any other documents that are responsive to plaintiff's request.

H. No. 9: All Documents constituting, referring to, or relating to any records reflecting training actually received by the Individual Defendants and all of their supervisors relating to: post and forfeit procedure, citation release procedure, or the bases for arrest for the offense of ...


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